June 21, 2000 MP3 2000 Summit 1

A NEW POLITICS OF INTELLECTUAL PROPERTY

Pamela Samuelson

University of California at Berkeley

MP3 2000 Summit, June 21, 2000

June 21, 2000 MP3 2000 Summit 2

OVERVIEW

• The “old” politics of intellectual property

• The legacy of that politics

• The current politics of intellectual property

• Illustrating the need for a new politics of intellectual property through 4 examples

• What such a politics might do and why you should care

June 21, 2000 MP3 2000 Summit 3

THE “OLD” POLITICS OF IP

Copyright lawmaking has mainly focused on resolving intra-industry conflicts:

• Authors v. commissioners of a work (§201(b))• Authors/publishers v. sound recorders (§115)• Broadcast TV v. cable TV (§111)• Broadcast TV/cable TV v. satellite (§119)• Publishers v. libraries/archives (§108)

June 21, 2000 MP3 2000 Summit 4

MORE ON “OLD” POLITICS

• Intra-industry conflicts were resolved by Congress saying “go behind closed doors, work out a compromise, and we’ll enact it”

• One consequence of this is that copyright law has become complex & unreadable

• This didn’t matter much as long as affected industries understood what it meant

June 21, 2000 MP3 2000 Summit 5

LEGACY OF “OLD” POLITICS

• “Old” politics invisible to ordinary folks because regulated public & commercial activities, not private noncommercial ones; individual users typically unaffected by decisions

• Industry groups built good relations with Congress and with Copyright Office

• No one else was really in the game (except libraries on occasion & they don’t make campaign contributions) so the industry got used to being the only (significant) lobbying group on copyright

June 21, 2000 MP3 2000 Summit 6

CURRENT POLITICS OF IP

• As IP has become more important to U.S. economy, Congress has been increasingly receptive to copyright industry concerns

• “Piracy” is an easy plea to Congress• More and more things characterized as

“piracy” (e.g., any unauthorized copy)• High protectionist agenda easier to sell

when lots of “piracy” said to be going on

June 21, 2000 MP3 2000 Summit 7

POLITICS OF WHITE PAPER

• Clinton Administration beholden to copyright industries because of campaign support

• Stronger copyright rules = what the industry wanted in return

• Chief IP official was former copyright industry lobbyist with history of high protectionist positions

• Internet is the wild, wild west; new rules needed to tame it and persuade copyright industries it would be safe to set up business there

June 21, 2000 MP3 2000 Summit 8

COPYRIGHT GRAB IN WHITE PAPER ON NII & IP

• Copyright owners have rights to control all temporary (RAM) + permanent copies in digital networked environment (e.g., every access, use)

• No more fair use/first sale in digital environment• Online service providers should be strictly liable

for user infringement• Need for new laws to protect rights management

information & outlaw circumvention technologies

June 21, 2000 MP3 2000 Summit 9

POLITICS OF DMCA

• Telcos/ISPs lobbied hard for “safe harbors” for transmission, caching, storing, and searching

• Computer industries (sans Microsoft) lobbied hard for interoperability/testing exceptions to anti-circumvention rules

• Universities/other nonprofits got few concessions (but benefited from safe harbors)

• Copyright industries largely got what they wanted legislatively through intensive lobbying

June 21, 2000 MP3 2000 Summit 10

WHY IS A NEW POLITICS NEEDED?

• High protectionists have gotten far more than they need (e.g., 1201), and they will seek more

• Copyright law now affects everybody, so “old” and current politics no longer acceptable

• Industry capture of the legislative and executive branches is likely to produce imbalanced policy

• Copyright works BECAUSE of balance (fair use)• Only way to restore balance is by new politics• That means the rest of us need to grasp what’s at

stake and act to protect our interests in IP rules

June 21, 2000 MP3 2000 Summit 11

BOYLE’S ANALOGY

• In the 1950’s, no concept of the “environment”• Logging and mining companies thought that they

had a lock on legislative issues affecting them• Took time for hunters, birdwatchers to recognize

common interest in preservation of nature• They invented the concept of the environment, &

then organized & lobbied to preserve it• Able to explain that acts of loggers and miners had

negative externalities for environment• An “information ecology” needs to be invented

June 21, 2000 MP3 2000 Summit 12

WHO MIGHT BE ALLIED?

• New digital media companies/Internet portal companies

• Authors/artists (they need public domain/fair use)• Telecommunications companies• Equipment manufacturers/software “players”• Computing professionals (e.g., ACM, IEEE)• Universities/libraries/other nonprofits• Consumer groups• Economists

June 21, 2000 MP3 2000 Summit 13

4 ISSUES A NEW POLITICS MIGHT FOCUS ON

1- Imagine an RIAA proposal to legislate SDMI as trusted system

2- Imagine copyright industry proposal to prosecute individual infringers under state law

3- Imagine proposal to prevent major labels from using privacy-invading, price discrimination-enhancing digital rights management systems

4- Imagine proposal for a Commission on the Status of the Individual Author/Artist

June 21, 2000 MP3 2000 Summit 14

PRECENDENTS: MANDATED TRUSTED SYSTEMS

• #1 Precursor: Audio Home Recording Act– Mandated SCMS chip in consumer digital

audio tape systems– Legislative deal: consumers can make personal

use copies; “tax” on tapes and machines to pay royalties to copyright owners

• #2 Precursor: obscure DMCA requirement that VCRs have anti-copying system built in

June 21, 2000 MP3 2000 Summit 15

PRIVATE LEGISLATIVE INITIATIVES

• DVD consortium as to movies– can’t make DVD players without patent license– can’t get this license unless agree to install

encrypted access control technology

• SDMI as to sound recordings– goal is set standards for technical protections to

be built into digital music players– once set, would RIAA take to Congress?

June 21, 2000 MP3 2000 Summit 16

WHY WORRY ABOUT PRIVATE LEGISLATION?

• Usurping role of legislature• Loss of (relatively) open forum in which all

affected stakeholders have an opportunity to persuade rulemakers of their position

• Typically the result of cartel behavior• Reaches results that would not prevail in the

market but for private legislative act• Industry capture of legislature may enable private

legislation to become public law

June 21, 2000 MP3 2000 Summit 17

PROPOSED MANDATE OF SDMI

• Why? Major labels want the law to reinforce their preferred business model

• Not what users want (users want MP3 players)• Not what equipment manufacturers want• If don’t have cartel or law, technical protections

might be competed away (as happened with copy-protected software some years ago)

• Unless a new politics effectively represents pro-MP3 position, RIAA could win in Congress

June 21, 2000 MP3 2000 Summit 18

NEW STATE PROSECUTIONS

• Right now, federal courts have exclusive jurisdiction in copyright cases

• Criminal copyright provisions require– willful infringement for commercial purposes– or willful infringement of $1000 of works

• Johnny Q. Public who makes a few illegal copies is not at risk because US Attorney can’t be bothered with minor cases, even if infringement is detected (which it’s generally not)

• Congressional resolution unlikely to change this

June 21, 2000 MP3 2000 Summit 19

WHY STATE PROSECUTION?

• Major copyright lobbyists might argue that – piracy is rampant among the public,– piracy is insufficiently deterred by existing criminal

enforcement system,– state court enforcement would lead to more respect for

IP, reduce piracy; teach kids a lesson (like prosecution for shoplifting)

• Alternatively, RIAA might want to set up its own private enforcement system and seek to get legislative endorsement of this

June 21, 2000 MP3 2000 Summit 20

WHY QUESTION STATE ENFORCEMENT?

• Complicated federalism issues• Constitutional grant to Congress, in part, to avoid

non-uniform decisions in states• Maybe this isn’t desirable social policy (e.g., the

line between fair use and infringement often unclear)

• Are we going to put all infringers in jail? • Are we willing to turn the U.S. into a copyright

police state?

June 21, 2000 MP3 2000 Summit 21

NEW POLITICS MIGHT SEEK PRIVACY PROTECTION

• Technically protected works can monitor what you read or view & how long (e.g., DivX system)

• Useful to make profiles for marketing purposes (if you liked X, you may like Y)

• Also useful for price discrimination• Revenues from selling user profiles to other

publishers• Should individuals have a right to read/listen

anonymously or to hack TPS to preserve privacy?• Should Congress pass law to protect user privacy?

June 21, 2000 MP3 2000 Summit 22

COMMISSION ON ARTISTS

• Artists/authors in danger of being roadkill on information superhighway

• Users want all content for no cost• Publishers/labels want all rights, no

responsibilities to share• Media concentration limits artist choice• Digital Dilemma report recommended a

Commission on the Status of Artist• Could propose measures to help artists

June 21, 2000 MP3 2000 Summit 23

CONCLUDING THOUGHTS

• Copyright is a critically important information policy

• Copyright policy has been balanced until recently• Copyright is not just about sustaining a market for

commercial products• Copyright is also about critical commentary, free

speech and free press, democratic discourse, knowledge creation, and innovation which often require some reuse of others’ works—which is why limits on copyright are so important

June 21, 2000 MP3 2000 Summit 24

CONCLUDING THOUGHTS

• Politics of intellectual property now are very biased in one direction and copyright industries are the sole beneficiaries of lopsided copyright

• MP3 battle is an important struggle in the war over what the new status quo for digital information will be

• Let’s work together to form a politics of IP for an information society we’d actually want to live in